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DIRECTORY AND CAPABILITIES

Motion for Summary Judgment Gets Pooped Upon

December 16, 2023 — Garret Murai - California Construction Law Blog
I’ve read some crappy motions over the years, some of which opposing counsel might even attribute to me, but I don’t think I’ve ever written about poop and motions. In Beebe v. Wonderful Pistachio & Almonds LLC, a summary judgment motion filed by a project owner sued by a construction worker for personal injuries caused by bird poop, which in turn caused a nasty fungal infection which spread to his brain, resulted in a not-so-wonderful ending for Wonderful. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Replacing Coal Plants with Renewables Is Cheaper 80% of the Time

May 31, 2021 — Leslie Kaufman - Bloomberg
About 80% of U.S. coal plants are now more expensive to keep running than to swap out for new wind and solar capacity, according to a report from Energy Innovation, a non-partisan climate and energy think tank. While renewables cost more than fossil energy for much of the last century, prices for new wind and solar have dropped so quickly in recent years that they were already cheaper than new coal. This report shows that the price differential holds true for a growing amount of existing coal, as well. “This is becoming true for more and more plants moving forward—and at an accelerating pace,” said Eric Gimon, a senior fellow with Energy Innovation and a co-author of the report. Coal has been steadily declining as a fixture of the U.S. energy mix for more than a decade due to combined pressure from activists and market forces. The Sierra Club, which runs the Beyond Coal campaign aimed at eliminating coal power in the U.S., says that 339 plants have either been retired or are on their way to retirement since 2010, leaving just 191 still operating indefinitely. (Michael R. Bloomberg, the founder and majority owner of Bloomberg LP, the parent company of Bloomberg News, has committed $500 million to launch Beyond Carbon, a campaign aimed at closing the remaining coal-powered plants in the U.S. by 2030 and slowing the construction of new gas plants.) Read the court decision
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Reprinted courtesy of Leslie Kaufman, Bloomberg

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Care, Custody or Control Exclusion Requires Complete and Exclusive Control by Insured Claiming Coverage

July 30, 2019 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In McMillin Homes Construction v. Natl. Fire & Marine Ins. Co. (No. D074219, filed 6/5/19) a California appeals court held that a “care, custody or control” exclusion did not bar coverage for defense of a general contractor as an additional insured under a subcontractor’s policy, because the exclusion requires exclusive control, but the facts and allegations posed a possibility of shared control with the subcontractor. McMillin was the general contractor on a housing project and was added as an additional insured to the roofing subcontractor’s policy pursuant to the construction subcontract. The homeowners sued, including allegations of water intrusion from roof defects. McMillin tendered to the roofing subcontractor’s insurer, which denied a defense based on the CGL exclusion for damage to property within McMillin’s care, custody or control. In the ensuing bad faith lawsuit, McMillin argued that the exclusion required complete or exclusive care, custody or control by the insured claiming coverage, which was not the case for McMillin. The insurer argued that the exclusion said nothing about complete or exclusive care, custody or control. Further, the intent to exclude coverage for damage to any and all property in McMillin’s care, custody or control, to whatever degree, was demonstrated by the fact that the additional insured endorsement in question was not an ISO CG2010 form, but a CG2009 form, which expressly adds a care, custody or control exclusion to the additional insured coverage not found in the CG2010 form. The argument was that the CG2009 form evidences an intent to conclusively eliminate coverage for property in the additional insured’s care, custody or control. In addition, the insurer argued that this result was also reinforced by its inclusion of an ISO CG2139 endorsement in the roofer’s policy, which eliminated that part of the “insured contract” language of the CGL form, defining an “insured contract” as “[t]hat part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for ‘bodily injury’ or ‘property damage’ to a third person or organization.” The insurer’s argument was that by having eliminated coverage for contractual indemnity or hold harmless agreements, it had “closed the loop” of eliminating additional insured coverage for construction defect claims. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Reprinted courtesy of

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Department of Transportation Revises Its Rules Affecting Environmental Review of Transportation Projects

December 04, 2018 — Anthony B. Cavender - Gravel2Gavel Construction & Real Estate Law Blog
On October 29, the U.S. Department of Transportation (DOT) published a final rule in the Federal Register which amends and revises the environmental National Environmental Policy Act (NEPA) procedures rules employed by the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA). There is a renewed interest in transportation infrastructure projects, and recent legislation is intended to accelerate required environmental reviews. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Condo Association Settles with Pulte Homes over Construction Defect Claims

November 06, 2013 — CDJ STAFF
The Springton Point Condominium Association has settled its construction defect claims against Pulte Homes for $5.6 million. The residents of the 152-unit condominium community alleged a variety of defects which led to water intrusion, as well as a variety of other problems, including defective fire sprinkler systems and missing insulation. Pulte filed lawsuits against its subcontractors on the project, however all but one of these were settled before the case went to trial. The lawsuit started in 2007, with Pulte adding the subcontractors in 2009. On October 25, a jury had been selected, but the case settled before opening statements. Read the court decision
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Reprinted courtesy of

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Another Reminder that Contracts are Powerful in Virginia

February 08, 2021 — Christopher G. Hill - Construction Law Musings
Regular readers of this construction law blog are likely tired of my refrain that the contract is king here in Virginia. With few exceptions, some of which have been passed in the last few years, the contract can and does essentially set the “law” for the transaction. A recent opinion from the 4th Circuit Court of Appeals confirms this principle. In Bracey v. Lancaster Foods, LLC, the Court looked at the question as to whether parties can contractually limit the statute of limitations in which a plaintiff or arbitration claimant can file its claim for relief. In Bracey, Michael Bracey, a truck driver, sued his former employer, Lancaster Foods, asserting various employment law claims. Lancaster moved to dismiss and compel arbitration based on the terms of an alternative dispute resolution agreement Bracey signed when he was hired, under which he consented to arbitration of any employment-related claim and waived all rights he may otherwise have had to a trial. Bracey challenged the arbitration clause, one that also included a 1-year limitation on the time in which Bracey was allowed to file any claim, as unconscionable. A federal judge in Maryland agreed and granted the motion to dismiss. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Nebraska’s Prompt Pay Act for 2015

January 21, 2015 — Craig Martin – Construction Contractor Advisor
Continuing with our theme of Ready for 2015, this blog serves as a reminder of your rights and obligations under Nebraska’s Prompt Pay Act, Neb. Rev. Stat. §§ 45-1201-1211. As you may recall, Nebraska’s legislature amended the Prompt Pay Act in 2014. The most significant changes are highlighted below. Attorney’s Fees May be Recovered. The most significant change in the Prompt Pay Act allows contractors to recover damages if they pursue a claim under the Act. And, this is not reciprocal in that the defendant may not recover fees. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Factual Issues Prevent Summary Judgment Determination on Coverage for Additional Insured

May 01, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Numerous factual issues prevented the court from deciding at the summary judgment stage whether the additional insured was covered for a personal injury claim that happened on a construction site. Paynes Cranes v. Am States Ins. Co., 2014 U.S. Dist. LEXIS 40485 (E.D. N.Y. March 26, 2014). Intermetal Fabricators, Inc. hired Paynes to provide a crane and driver for the construction of a store. A construction worker was injured while working with the crane. The injured worker sued several defendants, including Paynes. Intermetal had coverage for the project that included additional insureds. The policy provided, “Any person or organization . . . for whom you [Intermetal] are required by written contract, agreement or permit to provide insurance is an insured, subject to the following additional provisions: a. The contract, agreement or permit must be in effect during the policy period . . . and must have been executed prior to the ‘bodily injury,’ ‘property damage,’ 'person and advertising injury.’” Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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